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remanding for consideration of material records that doctor failed to provide before the hearing
Summary of this case from Lay v. ColvinOpinion
No. 02-CV-4605 (FB)
May 29, 2003
MICHAEL JOSEPH J. BARNAS, ESQ., New York, NY, For the Plaintiff
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, F. FRANKLIN AMANAT, ESQ., Assistant United States Attorney, Brooklyn, NY, For the Defendant
MEMORANDUM AND ORDER
Plaintiff Rachel Denise Spain ("plaintiff") challenges the decision of defendant Commissioner of the Social Security Administration ("SSA") ("Commissioner"), denying her disability benefits. Both parties move for judgment on the pleadings pursuant to Rule 12(c). For the following reasons, the Court denies the Commissioner's motion and orders remand for reconsideration of plaintiffs disability status upon proper consideration of plaintiffs treating physician's medical records, and for consideration of new, material evidence obtained by plaintiff.
I
This history of this case is meticulously set forth in the late Judge Nickerson's Memorandum and Order in Spain v. Apfel, 97-CV-7418 (E.D.N.Y. August 23, 2000). The Court presumes familiarity with that decision and its summary of the record at the time of the Commissioner's final determination of October 17, 1997.
In pertinent part, Judge Nickerson found the following: Plaintiff, a former traffic agent and housekeeper, had appeared before two different administrative law judges ("ALJs"), both of whom determined that her impairments — including hypertension and heart disease and an ankle injury — were "not severe" and thus, she did not meet the first step of the Social Security regulations for a finding of disability before her date of last insured, December 31, 1991. Judge Nickerson disagreed.
As to her hypertension and heart disease, Judge Nickerson noted that a treating physician, Dr. Gomes, had written a letter just "five months after plaintiff last had insured status that plaintiff `is not allowed to climb up and down stairs' or walk `long . . . distances.'" Spain, 97-CV-7418, at 12-13. Dr. Gomes also stated that plaintiff had taken medication for her heart impairments since at least 1989. Thus, Judge Nickerson ordered remand for a new ALJ to "seek out from Dr. Gomes the clinical basis for his statements and to request a report advising whether plaintiffs impairments extended back to within the claimed disability period" before "making the threshold determination of severity." Id. at 13.
As to plaintiff's ankle injury, the ALJ had rejected the opinions of two of plaintiffs doctors, Dr. Adelglass and Dr. Freeman, both of whom had opined that plaintiff had a disability dating from December 1989, because the ALJ concluded that "`the evidence [did] not disclose whether any positive findings were found and neither [did] it disclose a condition for which the claimant was treated or whether there were any positive findings or diagnoses made.'" Id. at 342 (quoting administrative transcript). Judge Nickerson determined that this finding was not supported by substantial evidence and ordered that an ALJ on remand "should continue to analyze plaintiffs ankle impairment along the five-step sequence, and should obtain the medical reports relied upon by Dr. Freeman and Dr. Elsheryn [a consulting physician], if feasible." Id. at 16-17.
At the administrative hearing held on October 30, 2001, a new ALJ evaluated whether plaintiff had the residual functional capacity ("RFC") to engage in light duty work, as she had in her past employment, or whether she was limited to sedentary or subsedentary duties. At the hearing, the ALJ stated that if he found that plaintiff could engage in sub-sedentary work only, then she would be considered disabled. Tr. at 302-03.
"Tr." refers to the entire administrative record, including exhibits.
1. Hypertension and Heart Disease
Prior to the hearing, neither the ALJ nor plaintiff's counsel obtained Dr. Gomes's medical records regarding plaintiff's hypertension and heart disease. Plaintiffs counsel explained that he had tried to get the records, and although the doctor initially agreed to release them, he changed his mind less than a week before the hearing. Tr. at 295. According to counsel, he did not have time to seek a subpoena from the ALJ Tr. at 295. The ALJ refused to hold the administrative record open in the event plaintiff received the medical records because "leaving the record open isn't something you know is of much good," particularly considering counsel's concession that Dr. Gomes might have destroyed the record since more than seven years had passed since he last treated plaintiff. Tr. 296-97. Consequently, the ALJ's May 1, 2002 written decision did not factor the effects of plaintiff's hypertension and heart disease impairments into the assessment of plaintiffs RFC.
On June 6, 2001, plaintiff received medical records from Dr. Gomes. Aff. of Michael Barnas, ¶ 4. They showed that as of November 15, 1990, plaintiff was complaining of exhaustion and swelling in her legs. She was taking care of a 14-month-old niece and did not have time to rest. She complained of dizziness and chest pain radiating to her left arm. Dr. Gomes diagnosed her with hypertension, coronary artery disease and congenital heart disease. Aff., Ex. 2.
2. Ankle Injury
To determine plaintiff's RFC in regard to her ankle injury, the ALJ subpoenaed Dr. Adelglass's treatment records from 1994-2001. In addition, plaintiff's attorney solicited an RFC assessment form from Dr. Adelglass. In his letter to the doctor requesting the assessment, plaintiffs attorney listed all the limitations that the SSA required to support a finding of sub-sedentary RFC, Tr. at 737, and Dr. Adelglass filled out the form in accordance with those limitations. Tr. at 690.
Dr. Adelglass submitted a cover letter with the RFC assessment form, in which he noted that plaintiff had right leg pain and back pain as a result of a 1978 injury, and that he had diagnosed her with "reflex sympathic dystrophy of her right lower extremity" in 1994. Tr. at 688. Further, he stated that plaintiff had undergone "numerous courses of physical therapy for the exacerbation in her pain over the past 13 years," Tr. at 688, and that "[i]n 1989 approx [sic] her back and leg pain increased . . . (as per history). She has essentially been disabled since her right ankle fracture and triple arthrodesis in 1979." Tr. at 689.
In his written decision, the ALJ did not refer to Dr. Adelglass's treatment records, and he rejected Dr. Adelglass's RFC assessment as not objective because it was influenced by plaintiffs attorney's letter. Instead, the ALJ determined plaintiffs RFC by relying on a consulting physician's 1993 assessment which had found "no gross difficulty in the claimant's ability to sit and moderate lifting/carrying standing/walking." Tr. at 288. According to the ALJ, these limitations were consistent with her ability to "perform a broad range of sedentary level work." Tr. at 288.
Based on the ALJ's conclusion that plaintiff could still perform sedentary work, he found that she was not disabled. The ALJ's decision became the final decision of the Commissioner 30 days later when the Appeals Counsel did not sua sponte assume jurisdiction. See 20 C.F.R. § 404.984 ("[W]hen a case is remanded by a Federal court for further consideration, the decision of the administrative law judge will become the final decision of the Commissioner after remand on your case unless the Appeals Council assumes jurisdiction of the case [.]").
II
The Court, in reviewing the Commissioner's decision, may only set aside a determination which is based upon "legal error or not supported by substantial evidence." Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (citation omitted). Substantial evidence exists when there is "more than a mere scintilla," and can be defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (citations omitted).
The Court finds that the ALJ acted within his discretion when deciding not to rely on Dr. Adelglass's RFC assessment, which appears to accord with plaintiffs attorney's legally-suggestive letter rather than provide an objective medical diagnosis. See 20 C.F.R. § 404.1527 (giving treating physician opinion controlling weight only if "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in your case record") However, the ALJ's rejection of this document did not justify his decision to disregard all of Dr. Adelglass's opinions and place sole reliance on a consulting physician's RFC assessment of plaintiff; even when an ALJ decides not to give controlling weight to a treating physician's records, he must give them some weight, and explain his reasons for so doing. See Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (ALJ assigns weight to treating physician's testimony by examining "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist."); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (noting that the less consistent a medical opinion is with the entire record, the less weight it is afforded by the Commissioner). The ALJ did not endeavor to assign a quantum of weight to Dr. Adelglass's cover letter accompanying the RFC assessment.
Furthermore, the ALJ did not explain his failure to examine Dr. Adelglass's treatment records. That the records post-dated plaintiffs date of last insured is of little consequence in this case, because all of the record medical evidence regarding plaintiff's ankle injury is retrospective, and Dr. Adelglass's treatment records offer the most complete account of plaintiffs injury. See Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) (even retrospective medical assessment by a treating physician "may be probative when based upon clinically acceptable diagnostic techniques.").
As for Dr. Gomes's records, the Court recognizes that an ALJ "has an obligation to develop the record . . . regardless of whether the claimant is represented by counsel," if there is a reasonable basis to believe that relevant medical evidence might be available. Shaw, 221 F.3d at 131; see 20 C FR. § 404.1512(e)(2) ("We may not seek additional evidence or clarification from a medical source when we know from past experience that the source either cannot or will not provide the necessary findings."). The ALJ cannot be faulted for his failure to obtain Dr. Gomes's records when counsel stated at the hearing that the records might not even exist. However, since Dr. Gomes has now responded, his records should be considered on remand, because they are clearly material to the determination of plaintiff's RFC, and the doctor's failure to provide the records before the hearing constitutes good cause for plaintiff's delay in producing them. See 42 U.S.C. § 405(g) (Court has statutory authority to "at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding[.]"); Lisa v. Sec'y of the Dept. of Health Human Servs., 940 F.2d 40, 45 (2d Cir. 1991) (applying statute).
Finally, although the Court concludes the ALJ adequately developed the medical record regarding plaintiffs ankle injury by obtaining Dr. Adelglass's expansive treatment records, for the sake of completeness, the Court directs the ALJ on remand to attempt to acquire the records of Dr. Freeman and Dr. Elsheryn as well. In addition, the Court orders the ALJ to consider any new documents produced by plaintiff from Dr. Adelglass which bear upon the assessment of her RFC, including his 2002 disability assessment submitted by plaintiff in support of this motion. See Aff., Ex. 1.
III
The Court denies the Commissioner's motion and orders remand for reassessment of plaintiffs RFC in accordance with this memorandum and order.